Consolidated Freightways Corp. of Delaware v. Larson

• Decision Date: 28 August 1987
• Docket Number: No. 87-5122,87-5122
• Parties: , 8 Fed.R.Serv.3d 1063 CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, a Delaware corp., Appellee, v. LARSON, Thomas D., Individually and in his capacity as Secretary of Trans., Dept. of Transp. Comm. of Penna.; Cochran, Jay Jr., Individually and in his capacity as Commissioner of the Penna. State Police; Zimmerman, Leroy S., individually and in his capacity as Attorney General of the Comm. of Penn.; Thornburgh, Richard, Individually and in his capacity as Governor of the Comm. of Penna., Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 916

827 F.2d 916

56 USLW 2174, 8 Fed.R.Serv.3d 1063

CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, a Delaware

corp., Appellee, v. LARSON, Thomas D., Individually and in his capacity as

Secretary of Trans., Dept. of Transp. Comm. of Penna.;

Cochran, Jay Jr., Individually and in his capacity as

Commissioner of the Penna. State Police; Zimmerman, Leroy

S., individually and in his capacity as Attorney General of

the Comm. of Penn.; Thornburgh, Richard, Individually and

in his capacity as Governor of the Comm. of Penna., Appellants.

No. 87-5122.

United States Court of Appeals, Third Circuit.

Argued April 29, 1987.

Decided Aug. 28, 1987.

Leroy S. Zimmerman, Atty. Gen., John G. Knorr, III (argued), Sr. Deputy Atty. Gen., Andrew S. Gordon, Chief Deputy Atty. Gen., Harrisburg, Pa., for appellants.

Jack M. Stover, Shearer, Mette, Evans & Woodside, Harrisburg, Pa., John Duncan Varda, John H. Lederer (argued), Margaret A. Sattherthwaite, DeWitt, Porter, Huggett, Schumacher & Morgan, S.C., Madison, Wis., for appellee.

Before WEIS and STAPLETON, Circuit Judges, and SAROKIN, ^* District Judge.

OPINION OF THE COURT

SAROKIN, District Judge:

Appellants, the Pennsylvania Secretary of Transportation et al., represented by the Pennsylvania Office of the Attorney General, sought to appeal from a November 19, 1986 order of the district court, 647 F.Supp. 1479, enjoining enforcement of certain provisions of Pennsylvania law held to be inconsistent with, and preempted by, the federal Surface Transportation Assistance Act of 1982, 49 U.S.C. Sec. 2301 et seq.

Pursuant to Federal Rule of Appellate Procedure 4(a)(1), notice of appeal was due to be filed on or before December 19, 1986. On December 18, 1986, one day before the 30 day limit for filing expired, counsel prepared a notice of appeal. The notice properly identified the case, docket number and district judge but erroneously listed the district as Eastern rather than Middle District of Pennsylvania. As a result of this error, the notice was mailed to the Eastern District rather than being hand delivered that day to the Middle District Clerk's Office in Harrisburg, adjacent to the Attorney General's Office. ¹

Notice arrived at the Eastern District on December 22, 1986. Upon detection of the error, the notice was immediately forwarded to the Middle District where it arrived on December 24, 1986, five days after the December 19, 1986 deadline. ² The appeal was promptly docketed as No. 87-5018.

As the timely filing of an appeal is an issue of jurisdictional import, on January 14, 1987, the Clerk of this court notified counsel of the possible procedural defect resulting from the delay. It is undisputed that counsel for defendants was not aware of the error until this time. Seeking to cure the defect, counsel immediately applied to the district court for a five day extension of time in which to appeal so that the Notice, filed on December 24, 1986, could be deemed timely filed. Pursuant to Federal Rule of Appellate Procedure 4(a)(5), a party who files for an extension of the 30 day appeal period after that period has expired must demonstrate "excusable neglect" in order to receive an extension.

The district court denied plaintiff's application reasoning that a clerical error made by counsel or someone under counsel's control can never constitute "excusable neglect" within the meaning of 4(a)(5). Plaintiff filed this timely appeal, No. 87-5122, from the denial of its application. Proceedings in this appeal were expedited and proceedings in No. 87-5018 were stayed pending a decision here.

As set forth in Pedereaux v. Doe, 767 F.2d 50, 51 (3d Cir.1985), our standard of review is mixed. Review of the district court's interpretation and application of Rule 4(a)(5) is plenary. The court's denial of the requested extension is limited to an abuse of discretion review. Finding that the district court erred as a matter of law in its rigid application of 4(a)(5), we now reverse.

The issue before this court is whether the inadvertent misdirection of a notice of appeal, which results in untimely filing, constitutes excusable neglect within the meaning of Federal Rule of Appellate Procedure 4(a)(5). ³

The district court concluded that conduct under the control of counsel cannot come within the excusable neglect exception. The court began its analysis by recognizing, correctly, that the standard for determining excusable neglect is "a 'strict' one," and that excusable neglect applies only to "extraordinary cases where injustice would otherwise result." See Advisory Committee Notes to 1966 amendment to Federal Rule of Civil Procedure 73, the predecessor of Fed.R.App.Proc. 4(a). Believing that counsel's inadvertent misdirection could not constitute an "extraordinary circumstance" sufficient to establish excusable neglect, the district court denied the requested extension.

Relying heavily on the Ninth Circuit's opinion in State of Oregon v. Champion International Corp., 680 F.2d 1300 (9th Cir.1982), the district court reasoned that "extending the excusable neglect exception to clerical errors of counsel or counsel's staff would be inconsistent with the Advisory Committee's intent to limit the exception to extraordinary cases and would thwart the Rule's purpose of promoting finality of judgments." Id. at 1301. In State of Oregon, appellant inadvertently mailed the notice of appeal to the state rather than the federal district court. The error caused the notice to arrive in federal court one day after the filing period. A two judge majority held that this was not excusable neglect. See also Alaska Limestone Corp. v. Hodel, 799 F.2d 1409 (9th Cir.1986) (adopting State of Oregon's strict interpretation of Rule 4(a)(5)).

The district court in the instant case interpreted Rule 4(a)(5) to require establishment of a per se rule that whenever counsel had, or should have had, "control" over the underlying error, such error could not, as a matter of law, constitute excusable neglect. The court placed much emphasis on the fact that the inadvertent misdirection "occurred within counsel's own office"; concluding that if counsel's inadvertent misdirection were excused, "we are hard pressed to discern a principle that would delineate excusable from inexcusable neglect." See Appendix at 23a, 26a. Consistent with the district court's interpretation, only those unavoidable errors which result through no fault of counsel, and are beyond counsel's control, qualify as instances of excusable neglect within the meaning of 4(a)(5). This court cannot agree.

We find it clear from the language of Rule 4(a) itself that the concept of excusable neglect encompasses more than acts, omissions, or events beyond the control of appellant and appellant's counsel. Section 4(a)(1) provides that if a notice of appeal is mistakenly filed in the court of appeals, rather than the district court, the clerk of the court of appeals shall automatically transfer the appeal and it shall be deemed filed on the date it was received by the circuit court. As eloquently stated by the dissent in State of Oregon, supra:

[t]his example evidences the drafters' intent that de minimis instances of neglect, such as the misaddressing of an envelope, be excused. To hold that mailing a notice of appeal to the [wrong] court is inexcusable although the rules explicitly require an opposite result if notice is mistakenly sent to the court of appeals defies explanation.

State of Oregon, supra, at 1302. ⁴

By limiting applicability of the excusable neglect exception to errors beyond counsel's control, the district court ignored Rule 4(a)(5)'s purpose of excusing "neglect." The district court's holding effectively writes the "excusable neglect" standard out of Rule 4(a)(5). Accordingly, this court finds that the district court erred as a matter of law in its interpretation and application of Rule 4(a)(5).

In addition, this court rejects the district court's attempt to establish a per se rule against applying excusable neglect to inadvertence of counsel. Rule 4(a)(5)'s excusable neglect standard requires a case-by-case analysis. In order to judiciously apply the standard, a court must, at a minimum, make findings as to the reasons underlying counsel's inadvertence. There is a qualitative distinction between inadvertence which occurs despite counsel's affirmative efforts to comply and inadvertence which results from counsel's lack of diligence.

Although every case must be examined on an ad hoc basis and it is impossible to compose an exhaustive list of factors relevant to a determination of whether excusable neglect has occurred, a thoughtful analysis of this issue in a particular context will, at a minimum, require a weighing and balancing of the following factors: (1) whether the inadvertence reflects professional incompetence such as ignorance of the rules of procedure, Campbell v. Bowlin, 724 F.2d 484 (5th Cir.1984) (failure to read rules of procedure not excusable); (2) whether the asserted inadvertence reflects an easily manufactured excuse incapable of verification by the court, Airline Pilots v. Executive Airlines, Inc., 569 F.2d 1174 (1st Cir.1978) (mistake in diarying counsel's calendar not excusable); (3) whether the tardiness results from counsel's failure to provide for a readily foreseeable consequence, United States v. Commonwealth of Virginia, 508 F.Supp. 187 (E.D.Va.1981) (failure to arrange coverage during attorney's vacation which encompassed end of appeal period not excusable); (4) whether the inadvertence reflects a complete lack of diligence, Reinsurance Co. of America, Inc. v. Administratia, 808 F.2d 1249 (7th Cir.1987); or (5) whether the court is satisfied that the inadvertence resulted despite counsel's substantial good faith efforts toward compliance.

Applying these factors to the case at bar, the court finds that counsel's error was not the result of professional incompetence; that counsel is not attempting to...